Waggoner v. City of Garland, Tex. ( 1993 )


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  •                                   United States Court of Appeals,
                                               Fifth Circuit.
    
    
                                                No. 92-1763
    
                                            Summary Calendar.
    
                            Bennett William WAGGONER, Plaintiff-Appellant,
    
                                                      v.
    
                           CITY OF GARLAND, TEXAS, Defendant-Appellee.
    
                                               April 8, 1993.
    
    Appeal from the United States District Court for the Northern District of Texas.
    
    BEFORE KING, DAVIS, and WIENER, Circuit Judges.
    
           WIENER, Circuit Judge.
    
           In this age discrimination case, Plaintiff-Appellant Bennett Waggoner appeals the district
    
    court's grant of summary judgment in favor of Defendant-Appellee City of Garland, Texas (the City)
    
    for Waggoner's failure to raise a genuine issue of material fact. After reviewing the record de novo,
    
    we affirm the district court's grant of summary judgment.
    
                                                      I
    
                                      FACTS AND PROCEEDINGS
    
           Waggoner, employed by the City in 1987 as a fleet mechanic, was given written notice of his
    
    discharge on October 2, 1989. The discharge notice, sent by Benny Hamilton, director of fleet
    
    maintenance, set forth in detail that Waggoner was being fired as a result of sexual harassment claims
    
    made by a female co-worker. The discharge notice recounted some of the specific allegations.
    
    Hamilton stated that a female employee, Etta Connor, had complained to Denny Phillips, a supervisor,
    
    about several incidents involving Waggoner, and that Phillips had reported overhearing Waggoner
    
    make several inappropriate comments. Hamilton further stated that he had reviewed the situation and
    
    had confirmed that Waggoner had exhibited offensive conduct on more than one occasion. As
    
    Waggoner's behavior violated the City's personnel directives, Hamilton concluded that discharge was
    
    appropriate.
              Waggoner pursued an appeal of his termination through City procedures, and sought
    
    unemployment benefits from the Texas Employment Commission (TEC). Concluding initially that
    
    the City had fired Waggoner for misconduct, the TEC denied benefits to Waggoner. On appeal,
    
    however, the TEC Appeals Tribunal reversed the original determination and found that (1) Waggoner
    
    had not committed the offensive conduct; (2) Hamilton, Connor, and Phillips had ulterior motives
    
    for lying; and (3) Waggoner had been dismissed without cause.
    
              Waggoner t hereafter filed a charge of age discrimination with the Equal Employment
    
    Opportunity Commission (EEOC), based on the Age Discrimination in Employment Act (ADEA).1
    
    The EEOC issued a determination in August 1990, finding no evidence that Waggoner's termination
    
    violated the ADEA. The EEOC concluded that Waggoner was discharged for his offensive sexual
    
    and racial remarks. Despite the EEOC's determination, Waggoner filed suit in federal court alleging
    
    age discrimination and age-related harassment.
    
              The district court granted partial summary judgment to the City on Waggoner's age-related
    
    harassment claim as a result of his failure to raise that claim with the EEOC. Subsequently, the City
    
    filed a summary judgment motion on Waggoner's ADEA claim, arguing that his responsive allegations
    
    failed to raise a genuine issue of material fact that the City's proffered explanation for his discharge
    
    was pretextual. In opposition to this motion, Waggoner proffered his own affidavit and the affidavit
    
    of Allen Howey, a co-worker.
    
              In his affidavit, Waggoner: (1) denied the harassment charges; (2) recounted Phillips'
    
    comments that Hamilton disliked Waggoner; and (3) claimed Hamilton had called him "an old fart"
    
    and had told him that a younger man could do faster work. Waggoner stated his subjective belief that
    
    Hamilton wanted to fire him because of his age and, as a result, entered into a conspiracy with Phillips
    
    and Connor to fabricate the sexual harassment story. Howey, in his affidavit, testified that six months
    
    prior to Waggoner's discharge, Phillips informed Waggoner that Hamilton disliked and wanted to fire
    
    Waggoner. Howey also stated that he had never heard Waggoner make any off-color remarks to his
    
    female co-workers. Notably, Howey's affidavit makes no reference to age, even by implication.
    
       1
           29 U.S.C. §§ 621-634.
              In addition to these affidavits, Waggoner submitted the decision of the TEC Appeals Tribunal
    
    with the above mentioned findings. Waggoner insisted that these findings, particularly the finding that
    
    he had not been discharged for his conduct, created a genuine issue of material fact on the pretext
    
    issue.
    
              In its consideration of the evidence, the court disregarded Waggoner's claims that he did not
    
    in fact harass Connor, stating that "the relevant inquiry is whether the decision makers believed at the
    
    time of discharge that the employee was guilty of harassment and, if so, whether this belief was the
    
    reason for discharge." In addition, the court declined to consider the TEC decision, as the Texas
    
    legislature has provided by statute that such findings are inadmissible in subsequent actions. After
    
    excluding this evidence, the court concluded that the only evidence submitted by Waggoner were the
    
    statements made by Hamilton that Waggoner was "an old fart" and that younger employees could do
    
    better and faster work. The court characterized these statements as "stray remarks" that were as a
    
    matter of law insufficient to establish age discrimination. Consequently, the court granted the
    
    summary judgment motion, and Waggoner timely appealed.
    
                                                       II
    
                                                  ANALYSIS
    
    A. Standard of Review
    
               "We review a summary judgment de novo, applying the same criteria as the district court."2
    
    Summary judgment is appropriate if there is "no genuine issue of material fact and ... the moving
    
    party is entitled to judgment as a matter of law."3 An issue is not genuine when there is nothing more
    
    than "some metaphysical doubt as to the material facts."4 In sum, "[w]here the record taken as a
    
    whole could not lead a rational trier of fact to find for the nonmoving party, there is no "genuine issue
    
    
    
       2
           Guthrie v. Tifco Indus., 
    941 F.2d 374
    , 376 (5th Cir.1991).
       3
       Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 
    477 U.S. 242
    , 250, 
    106 S. Ct. 2505
    ,
    2511, 
    91 L. Ed. 2d 202
     (1986).
       4
       Matsushita Elec. Indus. Co. v. Zenith Radio, 
    475 U.S. 574
    , 586, 
    106 S. Ct. 1348
    , 1356, 
    89 L. Ed. 2d 538
     (1986).
    for trial.' "5 When a court excludes evidence from consideration on evidentiary grounds, we review
    
    that decision for manifest error.6
    
    B. ADEA Claim
    
               To establish an ADE A claim, a plaintiff must initially create a prima facie case of
    
    discrimination by showing that: (1) he was within the protected class; (2) he was qualified for the
    
    job in question; and (3) employees outside the protected class were treated more favorably.7 Once
    
    the plaintiff has established a prima facie case, the burden shifts to the employer, who may rebut the
    
    presumption of discrimination by articulating " "some legitimate, nondiscriminatory reason' " for the
    
    discharge.8 If the employer is able to do so, the burden shifts back to the plaintiff, who must prove
    
    at " "a new level of specificity' that the reasons articulated by the employer are not true reasons but
    
    only pretexts."9 The plaintiff may satisfy his burden of persuasion "either directly by persuading the
    
    court that a discriminatory reason more likely motivated the employer or indirectly by showing that
    
    the employer's proffered explanation is unworthy of credence."10
    
              Both the City and the district court assumed, for the purposes of summary judgment only, that
    
    Waggoner had established a prima facie case, and that the burden had shifted to the City to articulate
    
    a nondiscriminatory reason for Waggoner's discharge. The City justified the discharge on the basis
    
    of the allegations of Waggoner's sexual harassment of Connor, on its face a legitimate and
    
    nondiscriminatory reason. The burden, therefore, returned to Waggoner to prove that the City's
    
    reason was a pretext for age discrimination. On appeal, Waggoner attempts to demonstrate that there
    
    are genuine issues of material fact whether the City's proffered reason is pretextual.
    
       5
           Id. at 587, 106 S.Ct. at 1356.
       6
           Skotak v. Tenneco Resins, Inc., 
    953 F.2d 909
    , 916 (5th Cir.1992).
       7
           Thornbrough v. Columbus & G.R. Co., 
    760 F.2d 633
    , 639 (5th Cir.1985).
       8
       Id. (quoting Texas Dept. of Community Affairs v. Burdine, 
    450 U.S. 248
    , 253-54, 
    101 S. Ct. 1089
    , 1093-94, 
    67 L. Ed. 2d 207
     (1981)).
       9
       Id. (quoting United States Postal Service Bd. of Governors v. Aikens, 
    460 U.S. 711
    , 714-15,
    
    103 S. Ct. 1478
    , 1481-82, 
    75 L. Ed. 2d 403
     (1983)).
       10
            Burdine, 450 U.S. at 256, 101 S.Ct. at 1095.
    C. Summary Judgment
    
               Although summary judgment is not favored in claims of employment discrimination,11 it is
    
    nonetheless proper when "there is no genuine issue as to any material fact and ... the moving party
    
    is entitled to a judgment as a matter of law."12 In reviewing a motion for summary judgment, the
    
    court must draw all inferences in favor of the nonmovant.13 A court may exclude summary judgment
    
    evidence from consideration on statutory or evidentiary grounds.
    
              In viewing Waggoner's summary judgment evidence, the court declined to consider many of
    
    Waggoner's statements in his affidavit, ruling that they were made without personal knowledge in
    
    violation of Fed.R.Civ.P. 56(e). In addition, the court declined to consider the decision of the TEC,
    
    which by statute is not admissible in subsequent proceedings. Waggoner takes issue with both of
    
    these evidentiary rulings.
    
               Although Waggoner does not address the court's ruling that many of the statements contained
    
    in his affidavits were made without personal knowledge, he insists that his affidavit presents credibility
    
    issues that are inappropriate for summary judgment. We agree with the district court, however, that
    
    Waggoner's statements concerning a conspiracy among Hamilton, Phillips, and Connor is speculation.
    
    We have held that a plaintiff's subjective belief that his discharge was based on age is simply
    
    insufficient to establish an ADEA claim.14
    
              Waggoner argues more forcefully on the second point, i.e., that the district court erred in
    
    excluding the TEC decision, which supports some of Waggoner's allegations. The court based its
    
    exclusion of the TEC decision on article 5221b-9 of the Texas civil statutes,15 which provides that
    
    findings of the TEC are inadmissible in subsequent actions. On appeal, Waggoner insists that the
    
    
       11
            Thornbrough, 760 F.2d at 640.
       12
            Fed R.Civ.P. 56(c).
       13
            Anderson, 477 U.S. at 255, 106 S.Ct. at 2514.
       14
        Elliott v. Group Medical & Surgical Serv., 
    714 F.2d 556
    , 567 (5th Cir.1983), cert. denied,
    
    467 U.S. 1215
    , 
    104 S. Ct. 2658
    , 
    81 L. Ed. 2d 364
     (1984).
       15
            Tex.Rev.Civ.Stat.Ann. art. 5221b-9 (Vernon Supp.1992).
    TEC findings were admissible because article 5221b-9, which precludes their use, did not become
    
    effective until twenty days after the filing of the instant suit. Application of the statute to the instant
    
    case would, in Waggoner's view, amount to an ex post facto law and an impermissible retroactive
    
    application of the law. Waggoner's argument is unpersuasive.
    
               In determining whether a statute properly may be applied to actions pending at its passage,
    
    the case law recognizes an important dichotomy between substantive statutes—which affect vested
    
    rights or impose penalties—and procedural statutes—"the mechanism for maintaining a suit ...
    
    includ[ing] pleading, process, and evidence."16 "A procedural statute controls litigation from its
    
    effective date, and it may be applied ... to proceedings pending at the time of its enactment."17 Article
    
    5221b-9, which limits the evidentiary uses of a TEC decision, is a procedural provision and contains
    
    no express provision barring its application to pending cases. Article 5221b-9 is therefore applicable
    
    to Waggoner's claim, and the district court did not err in declining to consider the TEC decision.18
    
    Waggoner also challenges the district court's refusal to consider his evidence regarding the veracity
    
    of the underlying charge of sexual harassment. The district court concluded that Waggoner's guilt
    
    or innocence of sexual harassment was largely irrelevant; that the true issue was whether the City
    
    believed in good faith that Waggoner had committed the offensive behavior and that Waggoner was
    
    discharged for that reason. Waggoner insists this is error, referring to language in prior decisions by
    
    this court discussing the veracity of the legitimate non-discriminatory reason advanced to justify the
    
    discharge.19 Again, Waggoner misses an important distinction.
    
              In the typical age discrimination claim, the employer's proffered reason for discharge will rely
    
    on the employer's own evaluation of the employee, e.g., his work performance was unsatisfactory,
    
    
       16
        Chislum v. Home Owners Funding Corp., 
    803 S.W.2d 800
    , 803 (Tex.App.—Corpus Christi
    1991, writ denied).
       17
        Rodriguez v. State, 
    779 S.W.2d 884
    , 886 (Tex.App.—Corpus Christi 1989, Review Granted
    1990).
       18
        Waggoner's argument that application of article 5221b-9 is an ex post facto law is, of course,
    without merit, as ex post facto prohibitions of the Constitution apply to criminal cases only.
       19
            See, e.g., Thornbrough, 760 F.2d at 633.
    he was a discipline problem, or another employee was better qualified. In Thornbrough, a case in
    
    which the employer justified the employee's discharge on the basis of qualifications, we stated:
    
              Of course the issue in this case is not whether Thornbrough or the retained employees were
              better qualified. The [employer] is entitled to make that decision for itself. The ADEA was
              not intended to be a vehicle for judicial second-guessing of business decisions, nor was it
              intended to transform the courts into personnel managers.... However, if the factfinder
              determines that [the discharged employee] was clearly better qualified than the employees
              who were retained, it is entitled to conclude that the [employer's] articulated reasons are
              pretexts.20
    
               In other discrimination cases, however, the employer begins an investigation and discharges
    
    an employee based on complaints lodged by one or more other employees, such as complaints of
    
    sexual harassment. In those cases, the validity of the initial complaint is not the central issue, because
    
    the ultimate falseness of the complaint proves nothing as to the employer, only as to the complaining
    
    employee. The real issue is whether the employer reasonably believed the employee's allegation and
    
    acted on it in good faith, or to the contrary, the employer did not actually believe the co-employee's
    
    allegation but instead used it as a pretext for an otherwise discriminatory dismissal. Thus, the inquiry
    
    is limited to whether the employer believed the allegation in good faith and whether the decision to
    
    discharge the employee was based on that belief.21
    
               To the extent that Waggoner's summary judgment evidence relates to his innocence of the
    
    sexual harassment charge, it is irrelevant. He must, instead, produce evidence demonstrating that
    
    Hamilton or Phillips did not in good faith believe the allegations, but relied on them in a bad faith
    
    pretext to discriminate against him on the basis of his age. Indeed, he alleges that Hamilton and
    
    Phillips not only knew the allegations were false, but that in fact they fabricated them for the purpose
    
       20
            Id. at 647.
       21
          The Eleventh Circuit recently set forth this rule in detail in Elrod v. Sears, Roebuck & Co.,
    
    939 F.2d 1466
     (11th Cir.1991). We have discussed this rule in the analogous cases alleging
    retaliatory firing. See, e.g., Jones v. Flagship Int'l, 
    793 F.2d 714
    , 729 (5th Cir.1986) (holding
    that employer who fired employee for soliciting co-workers to join lawsuit needed only good faith
    belief that employee had actually engaged in the solicitation); De Anda v. St. Joseph Hosp., 
    671 F.2d 850
    , 854 n. 6 (5th Cir.1982) ("Whether St. Joseph was wrong in its determination that she
    should have checked is irrelevant, as long as its belief, though erroneous, was the basis for
    termination."); Dickerson v. Metropolitan Dade County, 
    659 F.2d 574
    , 581 (5th Cir.1981) (Unit
    B) ("Even if DERM were wrong in its evaluation of the seriousness of the injury and the
    justiciability of the absences, it did not violate Title VII if it acted on the reasonable belief about
    the absences.").
    of discriminating against Waggoner because of his age. He fails, however, to produce any evidence
    
    that supports his conclusionary allegations.
    
            Having determined that some of Waggoner's evidence is either inadmissible or irrelevant, we
    
    are left with only the following allegations to support his claim: First, Waggoner reports that six
    
    months prior to his discharge, he was informed (by Phillips) that Hamilton did not like Waggoner and
    
    wanted to fire him—a statement supported by the affidavit of his co-worker, Howey; second,
    
    Waggoner and Howey testified that Connor repeatedly had attempted to transfer to the day shift, but
    
    it was only after Waggoner was fired that she received the coveted transfer (Waggoner's purely
    
    speculative conclusion is that this supports his theory that Connor lied about his conduct and was
    
    rewarded by Hamilton and Phillips); and finally, Waggoner recounts Hamilton's statements that a
    
    younger person could do faster work and his reference to Waggoner as an "old fart."
    
            Only the last statement has any conceivable connection to Waggoner's age, but, as we have
    
    held on several occasions, a mere "stray remark" is insufficient to establish age discrimination.22
    
    Moreover, aside from these stray comments, there is no evidence that Hamilton's dislike of Waggoner
    
    was in any way connected to his age.
    
            In addition, Waggoner's belief that Hamilton and Phillips engaged in a conspiracy with Connor
    
    to fabricate the sexual harassment claim is mere speculation, insufficient to create a genuine issue of
    
    material fact. Waggoner's only support for his theory that the sexual harassment claim was fabricated
    
    by Hamilton, Phillips, and Connor is the fact that Connor received a desirable transfer to a different
    
    shift the day after Waggoner was fired. This too rises to nothing higher than mere speculation,
    
    devoid of the required nexus with Waggoner's age.
    
            In closing, we reiterate that in all of Waggoner's evidence one important element is absent—a
    
    genuine issue of fact that the City's proffered non-discriminatory reason for Waggoner's discharge
    
    was a pretext for age discrimination. Hamilton and Phillips may have disliked Waggoner; they may
    
    have even sought to concoct a reaso n for his discharge. Yet, unless Waggoner can connect that
    
    
       22
         Turner v. North American Rubber, Inc., 
    979 F.2d 55
    , 59 (5th Cir.1992); Guthrie, 941 F.2d
    at 378-79.
    dislike to his age, there is no genuine issue of material fact regarding age or age based discrimination.
    
    As we have held that mere stray remarks, with nothing more, are insufficient to establish a claim of
    
    age discrimination, we agree with the district court here that there is no genuine issue of material fact,
    
    and that summary judgment is therefore appropriate.
    
            For the foregoing reasons, the decision of the district court is
    
            AFFIRMED.